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S.N. Rajan Vs. V.S. Govindaraj Mudaliar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 344 of 1949-50
Judge
Reported inAIR1953Kant1; AIR1953Mys1
ActsMysore House Rent and Accommodation Control Order, 1948 - Sections 8 - Order 2(2); Code of Civil Procedure (CPC), 1908 - Sections 9 - Order 9, Rule 13; Defence of India Rules - Rule 81(2); Bangalore House Rent and Accommodation Control Law, 1946 - Sections 14; Transfer of Property Act - Sections 111; Madras Buildings (Lease and Rent Control) Act, 1946 - Sections 9 and 11
AppellantS.N. Rajan
RespondentV.S. Govindaraj Mudaliar
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateS.K. Venkataranga Iyengar and ;O.S.N. Sheriff, Advs.
Excerpt:
.....can order eviction if he is satisfied. it may be taken that one of the conditions which the house rent controller has to be satisfied to be existing before he passes an order of eviction is that the tenancy must have been terminated by efflux of time or by issue of a notice or otherwise again this is a matter in which the house rent controller has jurisdiction to decide and his order right or wrong cannot be questioned in a civil court. this want of discrimination in the use of the term has resulted in a good deal of confusion. therefore it is very clear that it is the house rent controller that has to be satisfied that the landlord has proved that the tenancy has been terminated by issue of a legal notice or otherwise and that there are other circumstances which entitled the landlord..........had not terminated the tenancy by the issue of a proper notice before he applied to the house rent controller for his eviction. the plea that the tenancy had not been terminated by issue of a notice or otherwise was not taken before the house rent controller. it was not contended before him that he had no jurisdiction on any such ground. all the same it is contended that the civil courts have jurisdiction to ascertain whether the house rent controller has exceeded his jurisdiction, in passing an order of eviction, & the decision of this court in -- 'gururajachar v. rangiah', 52 mys h c r 455 has been relied on.2. there is hardly any doubt that an order passed by the house rent controller on matters about which he has no jurisdiction is ultra vires and could be questioned in a civil.....
Judgment:

Mallappa, J.

1. The suit in respect of which this appeal arises, was filed by the plaintiff-appellant for a declaration that the order passed by the District Judge, Civil Station, Bangalore, in appeal against the order in H. R. C. 106 of 1948, (directing his eviction) was without jurisdiction, as the defendant-respondent of whom he is a tenant, had not terminated the tenancy by the issue of a proper notice before he applied to the House Rent Controller for his eviction. The plea that the tenancy had not been terminated by issue of a notice or otherwise was not taken before the House Rent Controller. It was not contended before him that he had no jurisdiction on any such ground. All the same it is contended that the civil Courts have jurisdiction to ascertain whether the House Rent Controller has exceeded his jurisdiction, in passing an order of eviction, & the decision of this Court in -- 'Gururajachar v. Rangiah', 52 Mys H C R 455 has been relied on.

2. There is hardly any doubt that an order passed by the House Rent Controller on matters about which he has no jurisdiction is ultra vires and could be questioned in a Civil Court. As observed in the decision relied on at p. 403 :

'The House Kent Controller is a special tribunal created by the statute for a specific purpose. It can only act within the limits of the powers conferred by the statute. If the said limits are exceeded or are not conformed to, the decision of the tribunal is liable to be challenged by an action in a civil Court.'

The point for decision therefore in this case is whether the House Rent Controller had or had no jurisdiction to entertain the application filed by the defendant respondent for eviction of the plaintiff. He has inherent jurisdiction to pass orders in accordance with the provisions of the House Rent Control Order, which was passed in pursuance of Rule 31 (2) (bb) of the Defence of India Rules. According to Rule 81 (2) (bb) now embodied in Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act

'for regulating the letting and sub-letting of any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether with or without board,'

and in particular: (i) for controlling the rentsfor such accommodation either generally orwhen let to specified persons or classes of persons or in specified circumstances: (ii) for preventing in specified circumstances the evictionof tenants and sub-tenants from such accommodation; and (iii) for requiring such accommodation to be let either generally, or to specifiedpersons, or classes of persons in specifiedcircumstances.

According to the relevant provisions of the House Rent, Control Order, 2(2) 'House' means in the areas specified in the Schedule appended to this order, any building or part of a building let separately, suitable for any purpose residential or non-residential, and elsewhere a building or part of a building suitable for occupation as a residence and includes :

x x x x

x x x x

Supposing it is not admitted that therelationship between the petitioner and therespondent is that of a land-lord and tenant,& the person who has claimed to be the tenantcontends that he is not a tenant, but that heis a real owner of the property, it is open tothe House Rent Controller to find out fromevidence whether the person whose eviction issought is a tenant or not. If he finds that heis the owner, he could dismiss the petitionstating that he has no jurisdiction to deal withthe matter. Even if he decides that it is provedbefore him that the person who is sought tobe evicted is a tenant and he passes an orderof eviction, it is open to the person againstwhom the order is passed to file in the ordinaryCivil Courts having jurisdiction to decide thematter for declaration that he is the owner ofthe property and that the order of the HouseRent Controller is without jurisdiction. Similarly in case the House Rent Controller passesan order in respect of a property which cannotbe termed a house within the meaning of theHouse Rent Control Order, his order is withoutjurisdiction and can be questioned in a CivilCourt.

This is however different from stating that though he has inherent jurisdiction to pass an order his order can still be questioned in a Civil Court merely because his decision is incorrect. For instance, he can order eviction if he is satisfied.

'that the tenant has not paid and is not ready and willing to pay rent due in respect of the period before such an application; or (2) that the tenant is not ready and willing to pay the fair rent of the house for such period thereafter as he may continue to be in possession or (3) that the tenant has after the commencement of the order without the written consent of the landlord, transferred his right under the lease or sub-let the entire premises or any portion thereof etc. as contemplated in Clause 9 (2)'

of Mysore House Rent and Accommodation Control Order 1948. Merely because a tenant against whom an order is passed under these Clauses is able to satisfy the civil Court that the finding of the House Rent Controller is incorrect on these matters, it cannot be said that the Order of the House Rent Controller is without jurisdiction. The House Rent Controller has jurisdiction to decide those matters. Ho has jurisdiction not only to decide it rightly, but also to decide it wrongly.

As provided in the House Rent Control Order an order of the Controller shall be final and shall not be liable to be called in question in any Court of Law. So long as the order is in exercise of any power conferred by or under the House Rent Control Order, the decision of the Controller as to the existence of circumstances which enabled him to pass an order of eviction under Section 8, cannot be questioned in any civil Court. It may be taken that one of the conditions which the House Rent Controller has to be satisfied to be existing before he passes an order of eviction is that the tenancy must have been terminated by efflux of time or by issue of a notice or otherwise Again this is a matter in which the House Rent Controller has jurisdiction to decide and his order right or wrong cannot be questioned in a civil Court.

In -- 'Gururajachar v. Rangiah', 52 Mys. H C R 455, the view taken by Somayya and Rajamannar JJ. of the Madras High Court in a decision on an appeal against Order No. 202 of 1945 and also in the later decision reported in -- 'Narayanan Nair v. Kunhan Mannadiar', AIR 1949 Mad 127 has been relied on. In --'Krishnamurthy v. Parthasarathy', AIR 1949 Mad 780 Horwill and Rajagopalan JJ. after taking into consideration the above two decisions held as follows :

'The other question that arises in appeal is with regard to the jurisdiction of the Rent Controller to deal with this application in the absence of a notice to quit, on the assumption that a notice to quit was necessary. We agree with the learned Judge that this Court can entertain a suit to set aside an order of the Rent Controller if the Rent Controller exceeded the powers conferred on him. A Court or tribunal can, however be said to have no jurisdiction to entertain a suit or application only if it has no jurisdiction with regard to the subject-matter of the suit or application, e.g., if a suit is valued beyond Rs. 3000/-, the Court of a District Munsiff has no jurisdiction to entertain such a suit, and if it does so, then the decree is entirely void. Again, if a civil Court entertains one of those kinds of suits which are triable exclusively by a revenue Court under the Madras Estates Land Act, then its decree too, would be entirely void. But even these rules are subject to the qualification that if the jurisdiction of the Court depends upon the ascertainment of facts & the Court upon the facts found, holds that it has jurisdiction, then the decree of that Court cannot be ignored or set aside in collateral proceedings. In -- 'Ishan Chandra v. Moomraj Khan', AIR 192G Cal 1101:' Ghose J. remarked:

'There cannot be any question that a decree passed without jurisdiction is a nullity. But the expression 'jurisdiction' has not unoften been used with ambiguity, and the distinction between a judgment where jurisdiction is assumed by the Court where there is absolute want of it, and where the Court in the exercise of its jurisdiction acted wrongly in disregard of the law has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defect of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the jurisdiction of Courts thus.' (Then follows this quotation from Hawes).

'In the former case the whole proceeding is Corum non judice and void; in the latter the proceeding cannot be impugned in a collateral action, even though it be erroneous upon its face and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever.'

This decision has been followed in two subsequent cases -- 'D. P. Merchant v. Bank of Mysore Ltd.', AIR 1949 Mad 784 and -- 'K. Krishnan Nair v. Valliammal', AIR 1940 Mad 785 by Satyanarayana Kao J. and Panchapakesa Ayyar J. respectively. Therefore it is very clear that it is the House Rent Controller that has to be satisfied that the landlord has proved that the tenancy has been terminated by issue of a legal notice or otherwise and that there are other circumstances which entitled the landlord for an order of eviction against the tenant. He has jurisdiction to decide these matters and whether his order with respect to these is correct or not, cannot be questioned in any civil Court, though, if he purports to deal with a case in which he has no jurisdiction, as for instance when he purports to pass an order with respect to a property over which he has no jurisdiction or when it is proved in the Civil Court that the person affected is the real owner of the property not a tenant and that the House Rent Controller had no jurisdiction, the civil Court has no doubt full power to go into the question and decide whether the House Rent Controller acted with or without jurisdiction. In this case, the plaintiff could have taken the objection of the lease having been not terminated by issue of a notice or otherwise. The very fact that he failed to do so shows that the lease had been terminated, as otherwise he would have taken that plea which he was entitled to take. The civil Court cannot re-open the matter and hold that the tenancy had not been terminated, this being a point over which the House Rent Controller had jurisdiction to decide.

3. It is no doubt true that there are other observations in -- 'Gururajachar v. Rangiah', 52 Mysore H. C. R. 455, which may support a contrary view and the question whether the case has to be referred to a Full Bench was anxiously considered by us. It must however be stated that that course is not necessary, as in that case it was found as a matter of fact that the lease had been terminated and the question as to whether the civil Courts have jurisdiction to reconsider the matter had not arisen at all for consideration. Following with respect the view expressed in the later decisions of the Madras High Court we hold that it is not open to a tenant to question that the order of the House Rent Controller for his eviction is without jurisdiction on the ground that the lease had not been terminated by issue of a notice or otherwise. The judgments and decrees of the lower Courts are therefore upheld and this appeal stands dismissed with costs.

Vasudevamurthy, J.

4. The plaintiff was a tenant of the defendant in respect of a house in the civil station, Bangalore. The defendant applied to the House Rent Controller for the eviction of the plaintiff on the ground that he had failed to pay rents. His application was not granted and he appealed to the District Judge, Civil Station, Bangalore, under Section 14 of the Bangalore House Rent and Accommodation Control Law, 1946, which was then current in the then C. & M. Station, Bangalore; and he, as the Appellate Authority, passed an order directing the plaintiff to vacate the premises. When the defendant tried to execute that order, the plaintiff brought the suit O. S. No. 70/48-49 on the rile of the District Munsiff, Civil Station, Bangalore, for a declaration that the order passed by the District Judge was without jurisdiction and was invalid and for an injunction to restrain the defendant from executing that order. The District Munsiff dismissed the suit holding that it was not maintainable and the same was affirmed on appeal by the District Judge. The plaintiff has preferred this Second Appeal.

5. It is contended for the appellant that no notice had been issued by the defendant terminating the lease and that consequently the House Rent Controller had no jurisdiction to direct his eviction as his tenancy had not been determined in accordance with the provisions of the Transfer of Property Act. Such a plea was not raised before the Controller. The only ground on which eviction was sought was that the appellant was in arrears in the matter of rents. It was admitted that the appellant was in arrears but the same was sought to be justified unsuccessfully by the Appellant. The order of the. appellate authority directing eviction was based on a finding against him in respect of that sole ground.

The duty to issue a notice to determine the tenancy is not absolutely obligatory under all circumstances for instance it is incumbent on the landlord only in the absence of a contract or local law or usage to the contrary. The lease of immoveable property also determines by efflux of time as limited in the lease, or where such time limited conditionally on the happening of some event, by the happening of such event and other grounds set out in Section 111 of the Transfer of Property Act. The necessity to issue a notice and its sufficiency for determining the tenancy is not therefore in all cases a pure and simple question of law but may depend upon facts whose effects are to be legally interpreted in the light of 'the circumstances of the case.

If the objection had been raised before the House Rent Controller he would have been called upon to consider whether such a notice was necessary before he could exercise jurisdiction and pass orders, and not having raised the plea it is not open to the appellant to make it a ground for challenging the jurisdiction of the House Rent Controller by a suit in a Civil Court. It may also be observed that the Bangalore House Rent and Accommodation Control Law, 1915, does not expressly provide for the issue of any such notice.

6. In a case reported in -- 'D. P. Merchant v. Bank of Mysore, Ltd,', AIR 1949 Mad 784, the Rent Controller passed an order of eviction on the ground that the tenant failed to pay the rents due to the landlord. To enforce the order an execution petition was filed in the City Civil Court under Section 9 of the Madras Buildings (Lease and Rent Control) Act of 1946, which corresponds to Section 11 of our Order of 1946. Under that section also the order is executable as if it were a decree passed by the Court. The tenant objected to the execution of the order on the ground that the order was passed by the Rent Controller without jurisdiction as the tenancy was not determined by a notice to quit under the provisions of the Transfer of Property Act. Satyanarayana Rao J. observed:

'No question of want of jurisdiction arises merely because a notice to quit was not issued. In the case of a suit by a landlord to eject a tenant without a notice determining the tenancy, if the tenant raised no objection to the passing of a decree, it would not be open to such a tenant in execution of the decree to raise the contention that the judgment was wrong. It is open to the tenant to raise in the suit objections such as want of notice, and if he does not raise the objection in proper time, he would be precluded from raising the objection thereafter. If that is the position in the case of a decree passed in a suit, I see no reason for treating the order of the Rent Controller which is a decree under. Section 9 of the Act on a different footing. If, before the Rent Controller, in answer to the petition filed by the landlord for eviction the tenant failed to raise the objection that the tenancy was not determined, assuming that that is the correct legal position, he is thereafter precluded from raising the objection in execution.'

No doubt that was a case of raising the objection in execution proceedings but the principle appears to be equally applicable to a subsequent suit brought for the purpose of questioning the order when no such objection was taken at all in proceedings before the Rent Controller. When an application is made by a landlord for eviction, the tenant must obviously plead all the grounds open to him including want of notice determining the tenancy if he relies on the same to resist the application. The House Rent Controller will only then be called upon to determine if on any of those grounds the application can be refused, as pointed out, even in the case reported in -- 'Gururajachar v. Rangiah', 52 Mys. H. C. R. 455 at p. 471 on which reliance is placed for the appellant. It has been held that where the right to evict is disputed, it must be determined by the H. R. C. before he ran exercise his jurisdiction under Section 8 of the H. R. C. Order. This obviously cannot mean that even if no objection is raised at all regard-ling want of notice the tenant can file a civil suit questioning the order of the House Rent Controller on that ground.

7. The Courts below have held that the Appellant is also estopped from bringing his present suit. They have in this connection referred to the conduct of the Appellant subsequent to the passing of the order by the Appellate Authority when execution was applied for by the defendant. The Appellant not only submitted himself to the order of the District Judge but he made several applications supported by affidavits praying for extension of time to vacate the premises. Ex. II is one of such applications made in Execution Case No. 3 of 1948-49 on 20-7-1948 in which the Appellant has applied for two months' time to vacate the premise's and for stay of the execution of the order pending disposal of that application. He has made a second application on 39-8-1948 in the next Ex. Case No. 196 of 1948-49 praying for time till 15-9-48 and in the affidavit filed in support of that application he has stated that he had secured another house in Basavanagudi and that he would shift from the suit premises not later than the 9th or 10th of September 1948 settling the rents upto the date of vacating. He has made a third application on 16-11-1948 again in the next Ex. case No, 214/48-49 praying for at least two months time to find other accommodation and to vacate the premises, and praying for the stay of the execution proceedings in the meantime. He has expressly stated in that application that the grant of that relief will in no manner whatsoever prejudice the counter-petitioner. In none of these applications and affidavits has the appellant ever complained of want of notice or questioned the validity of the order of the House Rent Controller. Having made those applications and secured relief therefrom the appellant is now clearly estopped from raising the plea of want of notice and that the House Rent Controller had no jurisdiction at all to pass the order.

In a case reported in - 'Mt. Kapura Kuer v. Narain Singh', AIR 1949 Pat. 491, the Court had ordered under its inherent powers the restoration of an application made under Order 9, Rule 13 of the Code of Civil Procedure which had been dismissed for default upon payment of costs to the opposite party. The costs were paid and accepted by the opposite party who later on attempted to challenge the order of restoration on the ground that the Court had no jurisdiction under Section 151 to order the same. It was held by the Patna High Court that he was estopped from challenging the legality or propriety of that order.

8. In the result there are no reasons to interfere with the judgments and decrees of the Courts below and this appeal is accordingly dismissed with costs (Advocate's fee Rs. 25/-).

9. After I prepared my judgment, I havehad the benefit of reading my learned brother'sjudgment. I would, therefore, add to my judgment by saying that I fully agree with him.

10. Appeal dismissed.


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